October 28, 2009

"Contingent Constitutionalism: State and Local Criminal Laws and the Applicability of Federal Constitutional Rights"

The title of this post is the title of this piece available via SSRN from Wayne Logan. The paper seems especially timely in light of the Supreme Court's upcoming consideration of Second Amendment incorporation (not to mention the feds recent decision to "localize" its approach medical marijuana enforcement). Here is the abstract:

Americans have long been bound by a shared sense of constitutional commonality, and the Supreme Court has repeatedly condemned the notion that federal constitutional rights should be allowed to depend on distinct state and local legal norms. In reality, however, federal rights do indeed vary, and they do so as a result of their contingent relationship to the diversity of state and local laws on which they rely. Focusing on criminal procedure rights in particular, this Article examines the benefits and detriments of constitutional contingency, and casts in new light many enduring understandings of American constitutionalism, including the effects of incorporation doctrine and the nation’s mythic sense of shared constitutional commitment.